Academic journal article Notre Dame Law Review

The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power

Academic journal article Notre Dame Law Review

The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power

Article excerpt


The federal judiciary features a highly decentralized system of courts. The Supreme Court of the United States reviews only a few dozen cases each year. Meanwhile, regional U.S. courts of appeals operate independently of each other; district courts further divide and separate the exercise of federal judicial power. The role of the state courts in enforcing federal law further subdivides responsibility for the adjudication of federal law claims. Indeed, the Office of Chief Justice itself incorporates and reflects this vesting of the judicial power of the United States exclusively in collegial institutions--literally in a multiplicity of hands--effectively precluding its unilateral or precipitate exercise by a single person. The standard narrative posits that the radically decentralized nature of federal judicial power is a vice, rather than a virtue, because it renders federal law, including constitutional law, non-uniform based solely on the accident of geography.

This Article challenges the received wisdom, contending that the radical division of judicial authority makes perfect sense. Consensus among the disparate federal courts serves as a highly valuable means of legitimating the exercise of judicial review (notwithstanding the lack of a democratic mandate). The creation and maintenance of a highly decentralized system of federal and state courts exists by design, not accident. Greater centralization of judicial power easily could be achieved, yet we should think twice before abandoning our present system precisely because decentralized judicial deliberation improves and enhances the process of resolving difficult questions of fundamental importance. We should not reflexively accede to the suzerainty of uniformity as the paramount value in judicial decision making; instead, we must carefully consider the potential benefits associated with decentralizing judicial power by denying any one person--or juridical body--the exclusive power to exercise "[t]he judicial Power of the United States."


In many contexts and all too often, the familiar escapes careful or thoughtful consideration. Precisely because it is familiar, we unconsciously assume it to be fixed and unchangeable; indeed, we come simply to accept it as a background condition. This general principle holds true with respect to both law and legal institutions. For example, few reasonable people would agree to create a legislative body in which California, with over 30 million citizens, enjoys the same representation and voting power as Wyoming or North Dakota, which each have less than a million residents. (1) As Professor Sanford Levinson observes, "[t]he equal-vote rule in the Senate makes an absolute shambles of the idea that in the United States the majority of the people rule[s]." (2) Yet, path dependence seems to insulate this institution from sustained public criticism as radically undemocratic; most people in the contemporary United States simply accept the equal representation of the states in the Senate. Thus, an historical anomaly associated with the Connecticut Compromise goes largely unchallenged. (3)

In a similar vein, relatively little sustained attention has been devoted to the institutional structure of the federal courts. (4) The institution includes the Supreme Court of the United States, U.S. courts of appeals, and U.S. district courts. Moreover, the state judiciaries also should be included on any flow chart of the exercise of judicial power over federal questions given that these courts also routinely hear and decide important questions of federal law. Despite the central importance of institutional structure to the exercise of "[t]he judicial Power of the United States," we tend not to think very much-or very carefully--about either the structure of the federal courts or the Office of Chief Justice.

We ought to pay closer attention to this very familiar office and also to the broader question of the institutional structure of the federal judiciary itself. …

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